1987 (12) TMI 337

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....e its seizure and was given for disposal and preservation. The statements of the co-accused were recorded by the authorised officer of Excise Department under section 67 of the Act. Accused No. 2 has stated that this muddamal was supplied by the petitioner about seven days before its seizure and 3 to 4 days thereafter i.e. on 20-9-1987, this petitioner had also asked for money and price of the brown sugar. However, the accused No. 2 had expressed his inability to make any payment because the brown sugar was not till then sold and, therefore, he had stated that either the petitioner might take back the brown sugar or might take money after it is sold. However, the petitioner had insisted only on payment. It also appears from the statement of accused No. 2 that even on the date of the seizure of muddamal, this petitioner had gone to the house of the accused No. 2, however, the petitioner had returned having realised the situation prevailing there as the officers of Central Excise were present There is also a statement of the petitioner himself recorded in his language Hindi. Therein he has admitted having bought and supplied the borwn sugar. 3. The petitioner applied for bail to t....

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.... police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under this Act. It is on the basis of the provisions of Section 53 read with the notification which confers on the central excise officer powers of an officer-in-charge of a police station, that the argument is made that these officers are police officers and, therefore, the statements made before them by accused or co-accused are inadmissible in evidence. 5. The learned Counsel for the petitioner has also submitted that the comparison with the corresponding provisions of the Customs Act or the Central Excises & Salt Act and the Railway Property (Unlawful Possession) Act is inappropriate because under those Acts, there is no power in the officers under those Acts; to file a charge-sheet. Under Section 9 of the Central Excises & Salt Act offences under that Act are non-cognizable. Under section 37 of the Customs Act no cogniza....

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....rly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating police officer. The Supreme Court, therefore, held that any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(i) of the 1966 Act cannot be excluded from evidence under the said section 6. The learned Counsel appearing for the respondents has submitted that an authorised officer of the Central Excise Department has been authorised under section 67 to examine any person and the statements recorded by such an officer are not hit by either Section 25 or 26 of the Evidence Act. It is also submitted that these officers, even though they are officers under section 53 invested with the power of investigation of offence, cannot file a charge-sheet which is a power invested only in a police officer and those officers are not governed by all the provisions of Chapter XII of the Criminal Procedure Code. These officers are not required to follow the procedure of Section 154 of recording the FIR and any information relating to the commission of....

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.... 9. The Central Excises and Salt Act, Section 9 shows that offences under that Act are non-cognizable and, therefore, there is no question of a police! officer or central excise officer filing a charge-sheet under Section 173 of the Code of Criminal Procedure. However, Section 21 of that Act requires to be seen which reads as under: 21(1): When any person is forwarded under Section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose, the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may, exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case: Provided that: (a) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; ....

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....R or to file a charge sheet. The very fact that he is not constituted a police officer, but only invested with investigative power of a police officer indicates the legislative mention. Several powers of police station officer are expressly conferred That was not necessary if Chapter XII was applicable to the authorised excise officer. 11. In the case of Jagatsinh S. Sodha v. Collector of Customs and Anr. Misc. Criminal Application No. 787 of 1987, decided by J. P. Desai, J. on 1-5-1987, an analogous question was raised whether Section 167 of Chapter XII of the Code would apply to the investigation made by an authorised Customs or Excise officer in offences under the narcotics Act and it was held that the provisions of Section 167 of the Code do not apply to the offences under the Narcotics Act investigated by authorised officers of Customs or excise department. It was held as under: Section 51 of the said Act, of course, says that the provisions of the Code of Criminal Procedure 1973 shall apply, but it specifically states that they shall apply, in so far as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizu....

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....ocedure prescribed by the Code. The Division Bench of Allahabad High Court, after referring to various provisions of Chapter XII, came to the conclusion that entire Chapter XII deals with the investigation by police and it nowhere refers to any other investigation After referring to the various provisions of the Narcotics Act and the narcotic of fences being cognizable offences, it came to the conclusion that the Act is a complete Code relating to offences under the Act and therefore Chapter XII of the code would not be applicable to investigation of narcotic offences by the authorised excise officers in view of Section 4(2) of the Code. In coming to this conclusion, the Division Bench of Allahabad High Court referred to and considered the provisions of Section 41(2), 42(1), 52(3) and 53 of the Act and observed that these authorised officers are competent to exercise the powers exercisable by an officer in charge of a police station. But thereby they will not become police officers by themselves and that the authorised officers were not police officers in spite of the provisions of Section 53 and Chapter XII would not be attracted to their investigation and therefore the Division B....